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BY SIR DAVID MAXWELL FYFE:
Q. Defendant, would you return to the last document, 158-C.
That's the one about the Geneva Convention; it's Page 69 of
the English book; 102 of the German, whichever you're
following. The Sergeant major will help you to find it.
Now, if you'll look at the first paragraph, after the
sentence I read, "The Fuehrer is considering whether or not
Germany should renounce the Geneva Convention," it goes on:
[Page 276]
"Not only the Russians, but also the Western Powers, are
violating International Law by their actions against the
defenceless population and the residential districts of
the towns. It appears expedient to adopt the same course
in order to show the enemy that we are determined to
fight with every means for our existence, and, also,
through this measure to urge our people to resist to the
utmost."
Were not these, that are referred to there as "the same
course," were not these the measures considered necessary to
which you were referring in the second minute?
A. The witness who drew up these two records will be able to
explain exactly where and when this information was given. I
myself was only told - just as the Reichsmarschall testified
- that the Fuehrer was upset because our western front was
not holding, and men were quite pleased to become American
and English prisoners of war. That was how the whole thing
began; and that was the information which I originally
received.
I cannot give an opinion on these minutes, which were drawn
up by an officer. The best thing would be for Admiral Wagner
to give more exact details of these matters. I cannot say
mop than that under oath. I was of the opinion that the
renunciation of the Geneva Convention was, in principle, a
great mistake and was wrong. I have given practical proof of
my views on the treatment of prisoners of war.
Q. I want to make quite clear that the point that the
prosecution is putting against you is this: That you were
prepared not to denounce the Convention, but you were
prepared to take action contrary to the Convention and say
nothing about it; and that's what I suggested is the effect
of the last sentence, especially when read with these words
in the first paragraph.
My Lord, I am going to pass on to the war at sea.
A. I beg your pardon, but may I say one thing more? If
measures are taken against desertion, they must be made
public. They must have a deterrent effect; and so it never
entered my head to keep them secret. On the contrary, my
only thought was: "How is it possible to leave the Geneva
Convention at all?" And that is what I was expressing.
SIR DAVID MAXWELL FYFE: The document is clear.
THE PRESIDENT: The Tribunal will adjourn.
(A recess was taken.)
BY SIR DAVID MAXWELL FYFE:
Q. Defendant, did you know that, on the first day of the
war, the Navy informed the Foreign Office that the maximum
damage to England could only be achieved with the naval
forces you had, if U-boats were permitted the unrestricted
use of arms without warning against allied and neutral
shipping in a wide area? From the first day of the war, did
you know that the Navy expressed that view to the German
Foreign Office?
A. I do not believe that the Naval War Staff at the time
sent me a memorandum of that kind, if it was ever drawn up.
Q. Now, I want you to try and remember because it is quite
important. You say that the Naval Command never informed the
Flag Officer of U-boats that that was their view of the war?
A. I do not know. I cannot remember that the Naval War Staff
ever informed me of such a communication to the Foreign
Office. I don't believe they did; I don't know.
Q. Well, then, perhaps it would assist your memory if you
looked at the letter. My Lord, this is Document 851-D, and
it will become Exhibit GB 451.
A. No, I do not know this letter.
[Page 277]
Q. Now, I will just take it by stages because, of course,
you wouldn't know the first part, but I'll read it to you
and then we'll look at the memorandum together.
"Submitted respectfully to the Secretary of State" - that
would be Baron von Weizsaecker - "with the enclosed
memorandum.
"The Chief of the Operational Department of the Naval
Command, Captain Fricke, informed me by telephone that
the Fuehrer was already dealing with this matter. The
impression had, however, arisen here that the political
connections had again to be gone into and brought to the
Fuehrer's notice anew. Captain Fricke had, therefore,
sent Lt.-Commander Neubauer to the Foreign Office in
order to discuss the matter further." That is signed by
Albrecht on the 3rd of September, 1939.
Then there is the memorandum:
"The question of an unlimited U-boat war against England
is discussed in the enclosed data submitted by the Naval
High Command.
"The Navy has arrived at the conclusion that the maximum
damage to England, which can be achieved with the forces
available, can only be attained if the U-boats are
permitted an unrestricted use of arms without warning
against enemy and neutral shipping in the prohibited area
indicated in the enclosed map.
"The Navy does not fail to realize that:
"(a) Germany would thereby publicly disregard the
agreement of 1936 regarding the prosecution of economic
warfare.;
"(b) A military operation of this kind could not be
justified on the basis of the hitherto generally
accepted principles of international law."
And then it goes on to deal with it.
Are you telling the Tribunal that the defendant Raeder never
consulted, or informed you, before these data were submitted
to the Foreign Office?
A. No, he did not do so, and that is shown by the fact that
it is a memorandum from the Chief of the Operations Section
to the Secretary of State, that is to say, a negotiation
between Berlin and the Foreign Office; and the front
commander, whose station was on the coast and who, for all
practical purposes, was in charge of the U-boats, had
nothing to do with it.
I don't know this letter.
Q. Well, are you saying that you went on with your
activities at the beginning of the war without knowing that
this was the view of the Naval High Command?
A. I was not informed about this letter. I have said already
that my knowledge of it -
THE PRESIDENT: (Interposing). That wasn't an answer to the
question. The question was whether you knew at the time that
this was the view of the Naval High Command.
Answer the question.
A. No, I did not know that. I knew about the view of the
Naval High Command, that, step by step, it intended to act
according to the measures used by the enemy. I knew that.
SIR DAVID MAXWELL FYFE: But you see, that is the entire
difference, defendant. That is what you said at great length
in giving your evidence the day before yesterday and
yesterday, that you were answering step by step, the
measures of the enemy. You gave that evidence. Do you say
that you did not know that this was the view of the
defendant Raeder, formed on the first day of the war? Do you
say you didn't know it at all, you had no inkling that that
was Raeder's view?
A. No; I did not know that because I did not know of this
letter; and I do not know if that was the view of Admiral
Raeder. I do not know.
Q. Well, again I do not want to argue with you, but if the
Commander, the Chief of the Navy - and I think at that time
he called himself Chief of the Naval
[Page 278]
Staff as well - allows the chief of his Operational
Department to put this view forward to the Foreign Office -
is it the practice of the German Navy to allow post captains
to put forward a view like that when it is not held by the
Commander-in-Chief?
It is ridiculous, isn't it? No commander-in-chief would
allow a junior officer to put forward that view to the
Foreign Office unless he held it, would he?
A. Will you please ask the Commander of the Navy, Raeder. I
cannot give any information as to how this letter came to be
written.
Q. I will do that with very great pleasure, defendant, but
at the moment, you see, I have got to question you on the
matters that you put forward, and my next question is: Was
it not in pursuance of the view and desire expressed in that
memorandum, that the U-boat command disregarded from the
start the London Treaty about warning ships?
A. No, on the contrary, entirely on the contrary. In the
West we wanted to avoid any more severe measures, and we
attempted as long as possible to fight according to the
London Agreement. That can be seen from all the directives
that the U-boats received.
THE PRESIDENT: Sir David, ought you perhaps to draw his
attention to the penultimate paragraph in that memorandum?
SIR DAVID MAXWELL FYFE: My Lord, I probably should. My Lord,
I will read the three, because if you will notice it goes
on:-
"The High Command does not assert that England can be
beaten by unrestricted U-boat warfare. The cessation of
traffic with the world trade centre of England spells
serious disruptions of their national economy for the
neutrals, for which we can offer them no compensation.
"Points of view based on foreign politics would favour
using the military method of unrestricted U-boat warfare
only if England gives us a justification, by her method
of waging war, to order this form of warfare as a
reprisal.
"It appears necessary, in view of the great importance in
the field of foreign politics of the decision to be
taken, that it should be arrived at not only as a result
of military considerations, but taking into full account
the needs of foreign politics."
I am greatly obliged, your Lordship.
BY SIR DAVID MAXWELL FYFE:
Q. Did you hear of any qualification of this view which was
arrived at on considerations of foreign politics? Did you
hear anything about that?
A. No, I can only repeat that I saw this document here for
the first time.
Q. I see. Well now, I would like you, just before we go on
to the questions, to look at Page 19 of the English Document
Book, Page 49, of the German.
SIR DAVID MAXWELL FYFE: My Lord, the whole of the treaty,
which is very short, is set out there. My Lord, I have the
formal copy if your Lordship would like to see it, but it is
set out in these two paragraphs.
BY SIR DAVID MAXWELL FYFF:
Q. You see:-
"1. In action with regard to merchant ships, submarines
must conform to the rules of International Law to which
surface vessels are subjected.
"2. In particular, except in the case of persistent
refusal to stop on being duly summoned, or of active
resistance to visit or search, a warship, whether a
surface vessel or submarine, may not sink or render
incapable of navigation a merchant vessel without having
first placed passengers, crew, and ship's papers in a
place of safety. For this purpose the ship's boats are
not regarded as a place of safety unless the safety of
the passengers and crew is assured in the existing sea
and weather conditions by the proximity of land, or the
presence of another vessel which is in position to take
them on board."
[Page 279]
I had better remind you of that because I have some
questions to put to you upon it.
Would you turn over the page and look at the foot of Page 20
in the English Document Book - it is either Page 50 or 51 in
the German Document Book - where there are some figures set
out.
Have you got the page?
A. Yes, I have read it.
Q. You read it. You see that it says in the two sentences
before
"In a certain number of early cases, the German commander
allowed the crew of the merchant vessel to get clear, and
he even made some provision for them before he destroyed
the vessel. Such destruction was in accordance with
Article 72 of the Prize Ordinance, and therefore, for the
purpose of this paper the Germans have been given the
benefit of the doubt in such cases."
The following are the figures on record. This is for the
first year of the war:-
"Ships sunk: 241.
" Recorded attacks: 221.
"Illegal attacks: 112. At least 79 of these 112 ships
were torpedoed without warning. This does not, of course,
include convoy ships."
I wanted you to be quite clear, defendant, that it excludes,
first of all ships where any measures had been taken for the
safety of the crew, and secondly, it excludes convoy ships.
Now, do you dispute these figures in any way, that there
were 79 attacks without warning in the first year of the
war?
A. Yes. These figures cannot be checked. Yesterday I stated
that in consequence of the use of arms by ships, we had to
take other measures. So I cannot check whether this report
takes into consideration, which for other reasons looks very
like propaganda to me, the behaviour of the crews and their
resistance, etc. That is to say, it is impossible for me to
check these figures or to say on what they are based. At any
rate, the German point of view was that it was legal,
considering that the ships were armed and that they
transmitted intelligence - were part of an intelligence
organization - and that from now on action would be taken
against these ships without warning. I have already
mentioned the fact that England acted in exactly the same
way; and so did other nations.
Q. I am going to ask you some questions about that, but let
us just take one example. Was any warning given before the
Athenia was sunk?
A. No, I have already stated that that was a mistake; the
Athenia was taken for an auxiliary cruiser. The sinking of
an auxiliary cruiser without warning is quite legal. I have
also stated already that on a thorough examination of the
case, it was found that the commander should have been more
cautious and that is why he was punished.
Q. I just want to get your view, defendant. Did it ever
occur to you that in the case of a merchant ship, if it were
sunk without warning, it meant either death or terrible
suffering to the crew and to these merchant seamen? Did that
ever occur to you?
A. If merchant ships-
Q. just answer the question.
A. If a merchant ship acts like a merchant ship, it is
treated as such. If it does not, then the submarine must
proceed to the attack. That is legal and in accordance with
International Law. The same thing happened to the crews of
German merchant ships.
Q. That isn't what I asked you. I wanted to know, because it
is important on some of these points: Did it ever occur to
you; did you ever consider that you were going to cause
either death or terrible suffering to the crews of merchant
ships who were sunk without warning? Just tell us, did it
occur to you or didn't it?
A. Of course, but if a merchant ship is sunk legally, that
is just war, and there is suffering in other places too,
during a war.
[Page 280]
Q. Do you view with pride of achievement the fact that
thirty-five thousand British merchant seamen lost their
lives during the war? Do you view it as a proud achievement
of do you view it with regret?
A. Men are killed during wars and no one is proud of it.
That is badly expressed. It is a necessity, the harsh
necessity of war.

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